Siegel's Family Court Calendar

“The legal principles applicable to interim motions on mobility are well settled.  In Plumley v. Plumley, 1999 CanLII 13990, the court stated at par. 7:

It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2. There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3.  Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.

In Datars v. Graham, 2007 CanLII 34430, 41 R.L.F. (6th) 51, the court stated at par. 16:

The problem that this court faces on this motion, however, as McSorley J. observed in Kennedy, is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions. Consequently, the general reluctance of the court to effect fundamental changes in a child’s lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases, one that recognizes the short-term nature of interim orders and the summary nature of interim motions. As well, since the decision on an interim motion in a mobility case will often strongly influence the final outcome, particularly where relocation is permitted, caution is called for, especially since even more disruption may be caused in a child’s life if an interim order permitting the move is later reversed after trial: Downey v. Sterling, 2006 ONCJ 490 (Ont. C.J.); Goodship v. McMaster, 2003 CanLII 53670 (ON CJ), [2003] O.J. No. 4255 (Ont. C.J.).”

Geoffrion v. Belanger, 2017 ONSC 5349 (CanLII) at 4-5

“It is accepted that a judge is permitted to ask questions in order to clarify evidence that has been given by a witness or witnesses. The appellant submitted that the trial judge here went well beyond those well-established bounds. In questioning Dr. Pickup and Dr. Jaffe, the trial judge appeared to make negative findings of credibility against the wife, and put those findings to the witnesses by way of cross-examination. In the course of questioning these witnesses, he also appeared to be filling holes in the husband’s testimony.

It is crucial for trial judges to maintain their independence and impartiality throughout; the process depends upon it. When one party is self-represented, balancing trial efficiency and effectiveness with the appearance of independence and impartiality can be truly challenging.”

Clayson-Martin v. Martin, 2015 ONCA 596 (CanLII) at 107-108

“Clearly it is within the court’s jurisdiction to order a support payee to be designated as the beneficiary under the payor’s life insurance policy to provide interim security for the payment of interim spousal support: Family Law Act, RSO 1990 c. F. 3, s. 34 (1) (i) and (k); Katz v. Katz, 2014 ONCA 606; Dagg v. Cameron Estate, 2017 ONCA 366.”

Malik v. Malik, 2019 ONSC 5118 (CanLII) at 28

“The Family Court judge presiding at a case conference rendered judgment dismissing this application brought under the Family Law Rules for shared joint custody of a pet dog named Tuxedo under subrule 2(3) of the Family Rules and subrule 1.04(1) of the Rules of Civil Procedure.

The application as first issued on June 25, 2004, alleged that the parties had “dated during the period June 1993 to in or about February 2004.”  The respondent issued an answer/claim on July 16, 2004, denying she cohabited with the applicant and claiming custody of the dog.

Confronted with the objection that Family Court would only have jurisdiction in this case if the claim alleged cohabitation and constructive trust, the applicant amended his application to allege that the parties had dated and cohabited and that the respondent held possession of Tuxedo on a constructive trust for the two of them in equal shares.

The case conference judge reviewed the file and expressed his concerns as to jurisdiction and whether this case deserved a full hearing in the Family Court.  He gave the parties two weeks to make submissions.  After receiving the submissions, he dismissed the application on the basis that the parties “deserve a just procedure; one that is fair to both parties; one that saves time and expense; one that is appropriate to the importance and complexity of the case and one that devotes appropriate court resources.”  He added “three judges have now spent time in this file.  That is sufficient.  Short of a full-blown trial with contradictory oral evidence and findings of fact by a trial judge, nothing more can be added to allow the court to determine ownership.”

In his reasons, the judge alluded to paragraph 16 (12) (c) (iv) of the Family Rules, which allows the Family Court to dismiss or suspend a case because “the case is a waste of time, a nuisance or an abuse of the court’s process.”  While he did not rely on that rule, his reasons make clear that he regarded the case as a waste of the Family Court’s time.

We agree and on the basis of the trial judge’s findings we would dismiss the claim under rule 16 (12) (c) (iv) of the Family Rules.  Given the unusual nature of this claim and the material before him, the case conference judge was entitled to conclude that the claim would likely fail both on jurisdiction and on the merits, and that in view of the pressing workload of the Family Court the case did not warrant a full trial.”

Warnica v. Gering, 2005 CanLII 30838 (ON CA) at 1-6

“Counsel for the appellants also argued that counsel for the respondent’s closing address at trial was inflammatory and misstated the evidence.  None of the several specific objections raised on appeal were raised at trial.

There will seldom be a closing address by counsel that is not open to some criticism.  Where an objection to a closing argument is taken for the first time on appeal, however, counsel must demonstrate that any shortcomings or improprieties in counsel’s address were sufficiently serious to undermine the fairness of the trial or put the validity of the verdicts into real doubt.”

Rogacki v. Belz, 2004 CanLII 21439 (ON CA) at 21-22

“It is an error to default to the mid-range of the Spousal Support Advisory Guidelines, and the mid-range should not be treated as the default outcome. See Mason v. Mason, 2016 ONCA 725 (CanLII) at 199 and section 9.1 of the Spousal Support Advisory Guidelines. As set out in Mason at para. 199:

Section 9 of the 2016 Revised User’s Guide explicitly states: ‘The mid-point of the SSAG ranges should NOT be treated as the default outcome.’ In determining the appropriate quantum of support within the range, a court is required to consider the support factors and objectives… The SSAGs also provide a number of factors to consider while choosing a location within the range, including the strength of the compensatory claim, the recipient’s need, property division and debts, and the payor’s needs and ability to pay.” 

Easton v. Coxhead, 2018 ONSC 4784 (CanLII) at 112

“I do not mean to suggest that the birth of a sibling will always qualify as a material change in circumstances. Whether the birth of a sibling constitutes a material change is contextual, and can only be determined by examining the specific facts of each case and the precise terms of the parenting schedule sought to be varied: MacDonald v. MacDonald, 2014 ABCA 91, at paras. 6 and 12; Simmons v. Simmons, 2016 ABQB 479, at para. 37; Garland v. Brouwer, 2016 ONSC 5966, at para. 7.”

Brown v. Kagan (Brown), 2019 ONSC 5033 (CanLII) at 61

“The test for reasonable apprehension of bias was recently stated by this court in Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1, at para. 68: “Would a reasonable and informed person viewing the matter realistically and practically and having thought it through conclude that the judge, consciously or unconsciously would not decide fairly”. The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the judge’s impartiality and the question of a reasonable apprehension requires a highly fact-specific inquiry: Martin, at para. 71. 

In Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, leave to appeal refused, [2010] S.C.C.A. No. 91, at para. 243, this court cautioned: 

[A]ppellate courts are reluctant to intervene on the basis that a trial judge “entered the arena” and improperly intervened in a trial.  There is a strong presumption that judges have conducted themselves fairly and impartially.  Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not of themselves create unfairness.  Similarly, a trial judge’s willingness to debate with counsel openly over relevant factual and legal issues should not serve as a basis for a reasonable apprehension of bias.  In the end, an appellate court should only intervene if satisfied that the trial judge’s interventions, considered in the context of the entire trial, created a reasonable apprehension that the trial judge was biased. [Citations omitted.]

A.M. v. J.M., 2016 ONCA 644 (CanLII) at 55-56

“Given that the law does not lightly set aside an agreement, the threshold for establishing duress is high.  In Barton v. Armstrong [1976] A.C. 104, at 121 (J.C.P.C.), Lord Wilberforce (dissenting in the result) stated:

The action is one to set aside an apparently complete and valid agreement on the ground of duress. The basis of the plaintiff’s claim is, thus, that though there was apparent consent there was no true consent to the agreement; that the agreement was not voluntary. This involves consideration of what the law regards as voluntary, or its opposite; for in life, including the life of commerce and finance, many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor had no choice but to act. Absence of choice in this sense does not negate consent in law: for this the pressure must be one of a kind which the law does not regard as legitimate. Thus, out of the various means by which consent may be obtained—advice, persuasion, influence, inducement, representation, commercial pressure—the law has come to select some which it will not accept as a reason for voluntary action: fraud, abuse of relation of confidence, undue influence, duress or coercion. In this the law, under the influence of equity, has developed from the old common law conception of duress—threat to life and limb—and it has arrived at the modern generalisation expressed by Holmes J.—” subjected to an improper motive for action ” (Fairbanks v. Snow 13 Northeastern Reporter 596, 598). [Emphasis added]

Duress requires proof of pressure that: (1) the law regards as illegitimate, such as threat of any form of illegal action; and (2) is applied to such a degree as to amount to a “coercion of the will” of the party relying on this defence.  The following considerations apply in determining whether there is a “coercion of the will”: (1) did the party relying on this defence protest?  (2) was there an alternative course open to him or her?  (3) was he or she was independently advised? (4) after entering the agreement did he or she take steps to avoid the agreement after entering it?  See A.A. v. A.G, 2017 ONCA 243, paras. 26-27; Gordon v. Roebuck (1992), 1992 CanLII 7443 (ON CA), 9 O.R. (3d) 1 (C.A.), at para. 3.

An agreement obtained through duress is voidable at the instance of the party subjected to the duress unless by another agreement or through conduct, either express or implied, he affirms the impugned agreement at a time when he is no longer the victim of duress: Stott v. Merit Investment Corporation (1998), 1988 CanLII 192 (ON CA), 63 O.R. (2d) 545 (C.A.), at para. 49.”

Milionis v. Rivas, 2017 ONSC 5001 (CanLII) at 64-66

“In Thomas v. Osika, 2018 ONSC 2712 at para. 37, my colleague Audet J. said that the decision with respect to the choice of school, when the parents disagree, is ultimately a matter of judicial discretion.

In Thomas v. Osika, Audet J. said that a number of general principles have nonetheless emerged from the case law to assist the court to make a decision that is in the child’s best interests.

I adopt Audet J.’s summary of these general principles:

(a) Sub-section 28(1)(b) of the Children’s Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child’s enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567 (CanLII));

(b) It is implicit that a parent’s plan for the child’s education, and his or her capacity and commitment to carry out the plan are important elements affecting a child’s best interests. In developing a child’s educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679 (CanLII), 2013 ONCJ 679 (Ont. C.J.));

(c) When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child’s educational program (Deschenes v. Medwayosh, 2016 ONCJ 567 (CanLII));

(d) The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.);

(e) The importance of a school placement or educational program will promote and maintain a child’s cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (CanLII), 2012 ONCA 811 (Ont. C.A.);

(f) Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (CanLII), 2012 ONSC 4746 (Ont. S.C.J.);

(g) The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (CanLII), 2012 ONSC 4746 (Ont. S.C.J.);

(h) Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (CanLII), 2012 ONSC 4746 (Ont. S.C.J.);

(i) A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child’s needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479 (CanLII));

(j) Third party ranking systems, such as the Fraser Institute’s, should not factor into a Court’s decision.  These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479 (CanLII));

(k) If an aspect of a child’s life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child’s best interests (Perron v. Perron, 2012 ONCA 811 (CanLII), 2012 ONCA 811 (Ont. C.A.);

(l) Custodial parents should be entrusted with making the decision as to which school children should attend.  When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431 (CanLII));

(m) Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567 (CanLII)).”

Turnbull v. Turnbull, 2018 ONSC 5060 (CanLII) at 18-20